Tag Archives: foi

This semester I have had the privilege of working with two capable press freedom interns who have been helping me research my reports to Reporters Without Borders in Paris as their Australian correspondent.

Here is a summary of the posts from TONI MACKEY and EVE SOLIMAN:

13/03/2014

ABC’s Two Independent Audits Clear Accusation of Biased Coverage

There were two cases where ABC was accused of having a biased coverage. These cases were the news coverage of the 2013 Election against the Prime Minister Tony Abbott and the news coverage on Australian Asylum Seeker issues. Andrea Wills conducted an audit of 23 items that involved radio coverage of the 2013 election and found the items all followed the ABC’s Editorial Policies found in section 4. Gerald Stone conducted the audit on the asylum seeker issue and analysed 97 reports. He found the 93 were unbiased and followed ABC’s Editorial Policies. Source: http://www.theaustralian.com.au/media/audits-exonerate-abc-over-bias-claims/story-e6frg996-1226852398864

Rinehart’s Court Order to help the introduction of uniform shield laws

Mining magnate Gina Rinehart demanded Adele Ferguson to release her sources, however a court has ruled in Ferguson’s favour with Rinehart’s business having to pay all of her court costs. This case is also being used in support of uniform shield laws for journalists throughout Australia. There have been several previous cases in Australia where journalists have been threatened and charged over not releasing sources. Source: http://www.abc.net.au/news/2014-03-15/rinehart-ordered-to-pay-journalist27s-costs/5323084

Politician warned over releasing media statements regarding the military unless given permission

Section 18C of the Racial Discrimination Act – making it illegal to publicly offend, insult, humiliate on the grounds of race – has been slated for removal in a reform. The proposed legislation states : “it is unlawful for a person to do an act, otherwise than in private, if a) the act is reasonably likely (i) to vilify another person or a group of persons; or (ii) to intimidate another person or group of persons.” Section 18D would be repealed and replaced with “ this section does not apply to words, sounds, images, or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.” Source: http://www.abc.net.au/news/2014-03-25/racial-discrimination-act-changes-george-brandis/5343464

Public servants have been urged to dob in their colleagues for posting political criticisms on social media. This comes under the Australian Public Service Code of Conduct and breaches of this act include “harsh or extreme in their criticism of the Government, Government policies, a member of parliament from another political party, or their respective policies, that they could raise questions about the employee’s capacity to work professionally, efficiently or impartially.” It covers posts that are made on facebook, twitter, youtube, pinterest, flikr, blogs, forums and wikipedia. Source: http://www.dailytelegraph.com.au/news/nsw/colleagues-told-dob-in-political-web-posts/story-fni0cx12-1226875635588

Seven Network’s reputation damage by the Australian Federal Police

Seven Network suffered damages to its reputation after an Australian Federal Police raid that was looking for evidence of a deal with Schapelle Corby. The network says that even if there was a deal, there was no criminal offence and that because of the raid it has suffered damage to its corporate image from it imply they have committed an offence. They stated that they complied with the instructions to hand over documents to the AFP, however it was implied that there was further material that was being withheld. Source: http://www.theguardian.com/world/2014/apr/07/seven-network-says-it-suffered-reputational-damage-after-afp-raids

09/04/2014

Mamma Mia Faces Possible Contempt of Court

Mamma Mia journalist Kate Leaver’s article included alleged prejudicial remarks on the Hughes case. At this time however the jury was still in session, the article was published with a headline that did not state the subject of Robert Hughes which meant that the jury members could have been exposed to biased information. Coverage on this possible conviction of contempt of court was banned to be reported on until after the trial was over. The article involved accusations against Hughes’ wife. Judge Zahra referred the matter to the NSW Attorney General Source: http://mumbrella.com.au/mamamia-face-possible-contempt-court-charges-robert-hughes-case-219065

An Australian journalist was deported from Myanmar. This was because he was covering a press freedom demonstration. The authorities accused him of breaching the terms of his business visa. They believe that he was taking part in the demonstration. This follows a previous journalist working for the same website Democratic Voice of Burma, being sentenced a year in jail. Source: http://www.abc.net.au/news/2014-05-09/australian-journalist-deported-from-myanmar/5440830

Treasurer Joe Hockey’s budget contains a 1% cut to ABC and SBS funding for the next four years. Although this may seem minute in reality this also includes the media outlet not benefiting from the 3% inflation rate adjustments and remaining stagnant. The 1% cut amounts to an annual decrease of $9 million the first year, also the complete cancellation of funding for The Australia Network. ACMA (The Australian Communications and Media Authority) also is receiving a $3.3 million cut over four years. Source: http://www.theaustralian.com.au/media/abc-news-to-feel-effect-of-australia-network-axe/story-e6frg996-1226917173980

Accusations have arisen regarding Government bodies snooping on the public’s social media pages. It started from a tweet from the Department of Immigration and Border Protection (DIBP) to a pro-asylum seeker activist that gave the impression that they had seen posts on her private Facebook page. On April 4 2014, the DIBP sent Vanessa Powell a twitter message stating “it’s come to our attention that a Facebook post on your wall contains an offensive remark directed at a staff member”. The tweets from the DIBP stated “If you do not remove your Facebook post with immediate effect, we will consider our options further” and “Post in question is dated yesterday, with a picture of a bus and contains a comment by George Georgiadis”. This last tweet is in response to Ms Powell asking what tweet they were referring too. This post has since been removed from Ms Powell’s Facebook page. According to a Sydney Morning Herald article the DIBP hires private contractors who monitor social media every day to determine Australian perceptions on different policies. Source: http://www.smh.com.au/national/public-service/government-cyber-snoops-scouring-social-media-20140410-36gen.html

Australia-based African Defamation Case

Australian- based Zimbabwe African National Union Patriotic Front writer Reason Wafawarova is being sued for defamation by former Zimbabwe Envoy ambassador Jacqueline Zwambila. Zwambila filed for a lawsuit back in 2011 where she claimed that Wafawarova defamed her in an article published in the Zimbabwean state media in 2010. This article claimed that a former Zimbabwean envoy had stripped in front of embassy staff. She has claimed that the article has followed her around, her name had been stigmatised and that it had taken dignity away from the country. Wafawarova has said that he is unable to receive a fair trial because his witnesses are Zimbabwean diplomats that have since been redeployed from the embassy and that their governments had refused his request for their appearances. He has also argued that the article was about something that happened on Zimbabwean soil and in a Zimbabwe newspaper so therefore Australia should have no jurisdiction over the matter. Source: http://www.swradioafrica.com/2014/05/12/former-envoy-sues-zanu-pf-writer-for-200000/

Australian journalists face the possibility of extra delays in their freedom of information appeals with Australian federal budget cuts doing away with the Office of the Australian Information Commissioner (OAIC) by January 2015.

The cut is meant to save $10.2 million a year, but dissolving the OAIC will mean the duties that the agency carried out will have to be shifted into four other bodies.

The privacy functions that are carried out by the Privacy Commissioner will continue as an independent legislative position within the Human Rights Commission.

The external examination of Freedom of Information (FOI) will be adopted by the Administrative Affairs Tribunal.

The Commonwealth Ombudsman will take the responsibility of filing and treatment of FOI complaints.

The last function will be divided into the Attorney General’s Department, whose responsibility will include the administering of “FOI guidelines, collecting statistics and providing explanatory material on the operation of the Freedom of Information Act 1982” (Office of the Information Commissioner disbanded as part of budget reforms, Ashurst Australia).

The budget cuts aimed at saving $10.2 million annually but will only save $3.3 million in direct financing this year and the cost of financing the continued duties, once carried out by the federal budget will be passed onto the four separate departments that it absorbed into. Source:

Australian journalists face the possibility of extra delays in their freedom of information appeals with Australian federal budget cuts doing away with the Office of the Australian Information Commissioner (OAIC) by January 2015.

The cut is meant to save $10.2 million a year, but dissolving the OAIC will mean the duties that the agency carried out will have to be shifted into four other bodies.

The privacy functions that are carried out by the Privacy Commissioner will continue as an independent legislative position within the Human Rights Commission.

The external examination of Freedom of Information (FOI) will be adopted by the Administrative Affairs Tribunal.

The Commonwealth Ombudsman will take the responsibility of filing and treatment of FOI complaints.

The last function will be divided into the Attorney General’s Department, whose responsibility will include the administering of “FOI guidelines, collecting statistics and providing explanatory material on the operation of the Freedom of Information Act 1982” (Office of the Information Commissioner disbanded as part of budget reforms, Ashurst Australia).

The budget cuts aimed at saving $10.2 million annually but will only save $3.3 million in direct financing this year and the cost of financing the continued duties, once carried out by the federal budget will be passed onto the four separate departments that it absorbed into.

The Attorney General’s Office will be funding $500,000 this year and $900,000 annually in the following years, the Human Rights Commission will contribute $2.7 million in 2015 and around $5.5 million annually the following years and the Administrative Appeals Tribunal will pay $300,000 this year and half a million dollars annually in the following years.

The reasons behind the budget cut can only be speculated, but could have a negative impact on the freedom of information and ways that the functions can be met.

A major critique by the government, agencies and other commentators on the OAIC, is that it has been inefficient in delivering information and reviewing FOI applications.

But despite claims of the OAIC’s efficiency, or viewing the institution as unnecessary there is copious amounts of evidence on the accomplishments and progress of OAIC to counter the arguments.

The completion of cases per day has increased from .37 cases in the first year and a half of its establishment, to 4.7 cases per day, the completion and cessation of FOI requests and privacy complaints also increased substantially.

The OAIC was formed in 2010 as an independent bureau within the Attorney General’s Department that’s purpose involved several elements of information dispersal and management: privacy, FOI and policy.

Predating the formation of the OAIC, the Privacy Commissioner belonged to the Human Rights Commission. The OAIC has 76 staff.

The OAIC has accomplished many things within the spectrum of privacy, freedom of information and information policy.

The agency had conducted an audit of the information management policies belonging to 191 Australian government agencies.

OAIC also resolved a total of 1,191 appeal applications and requests for information and published the reasoning for 186 of those cases, handled 4521 phone enquiries and 1891 written enquiries involving freedom of information and closed 394 FOI complaints.

In 2011, the OAIC hosted a National Information Policy Conference, that was attended by hundreds of people and created and dispersed the Principles on open public sector information which the government utilises and relies on.

Those proposals arose in a highly politicised context where the then government believed some media outlets were biased against them.

The new Abbott conservative government – despite having opposed those reforms under the banner of press freedom – now seems to have adopted the public soap box and budgetary strategies with the ABC directly in its sights.

Prime Minister Abbott used a populist radio program to label the ABC ‘unpatriotic’ following the broadcaster’s publication of claims by asylum seekers that they had suffered burns during an Australian navy operation. [Well detailed by former ABC Media Watch host Jonathan Holmes here in The Age.]

In the same radio interview Mr Abbott criticised the ABC’s reportage of the Edward Snowden NSA leaks, including the revelation that Australia’s spy agency had secretly tapped the phones of Indonesian president Susilo Bambang Yudohoyono and his wife in 2009. He questioned the funding of the ABC’s FactCheck Unit which a few days earlier disproved his claim asylum seekers who alleged mistreatment by the Navy were breaking the law.

His criticisms came only hours prior to the Minister for Communications Malcolm Turnbull announcing an “efficiency review” of the ABC and its sister national broadcaster SBS (Special Broadcasting Service). The review will be looking for cost-saving measures in the lead-up to the May budget.

Reporters Without Borders has a long history of dealing with governments that demand national broadcasters be more patriotic in their coverage under threats to withdraw funding. But these cases rarely occur in Western democracies with a relatively high media freedom ranking. (Australia’s was 26/179 in 2013).

A free news media and a truly independent national broadcaster should be neither patriotic nor unpatriotic – such calls to nationalism are anathema to genuine truth-seeking and truth-telling in society.

An independent national broadcaster is not the equivalent of the marketing arm of a large corporation.

The ABC’s reportage of both the asylum seeker allegations and the spying scandal is understandable given the Australian Government’s policy of withholding information about the fate of asylum seekers who have attempted to reach Australian shores by boat.

When journalists are deprived of basic information they are within their rights to publish serious allegations like those of the asylum seekers who claimed to have been injured at the hands of Australian defence forces, particularly if government sources are refusing to offer information about the circumstances.

They are simply reporting the truth that the allegations have been made. Authorities and other media or citizen journalists can set the record straight with evidence if the allegations are unfounded.

It is quite different from false allegations about an individual citizen – where that person could sue for defamation.

There is a policy reason large corporates and government entities like the Navy cannot sue for defamation over such allegations: in a democratic society such assertions deserve circulation so citizens can weigh their credibility.

Even if ultimately proven false, the allegations of mistreatment of asylum seekers had an element of plausibility when made because the Australian authorities – including the Navy, national security agencies and the border protection regime – had ‘form’.

It may be unpatriotic to say this, but documented incidents suggest it would be naïve to give Australian governments (of whatever persuasion) and agencies the benefit of the doubt in such situations.

They include (at the very least):

The ‘Children Overboard’ Affair in 2001 where Howard Government and defence claims about events concerning the Norwegian freighter MV Tampa proved to be politicised and misleading.

The recent revelations that Australian agents eavesdropped on the Indonesian President and spied on East Timor during oil and gas negotiations.

The Howard Government’s dogged determination to pursue Gold Coast doctor Mohamed Haneef, damage his reputation and cancel his visa as its terrorism allegations against him evaporated in 2007.

The free flow of information is crucial to the democratic standing of a country like Australia. Such attacks by political leaders and calls for patriotism are what we expect from nations ranking much lower on RSF’s World Press Freedom Index.

The Australian Government should direct its energies to improving the free flow of information in society and granting better access and information to journalists and other citizens instead of name-calling, threats of fund cuts, and bizarre calls for media patriotism.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

A recent decision by the Australian Information Commissioner has demonstrated that persistence with a Freedom of Information application can pay off – if you are willing to wait the year or more for the appeal process to take its course.

Farrell and Department of Immigration and Border Protection [2013] AICmr 81 (21 November 2013) was decided recently and may well be subject to further appeal.

FOI data used in The Global Mail multimedia coverage

On November 15, 2012, he applied to the Department of Immigration and Border Protection for access to a series of incident reports about five self-harming events logged on the department’s FI disclosure log.

On January 14, 2013, the Department provided Mr Farrell with edited copies of five documents totalling 23 pages related to his request, citing its ‘operations of agency’ and ‘personal privacy’ exemptions under sections 47E and 47F of the Commonwealth FOI Act as its reasons for the deletion of material. On February 14, 2013, Mr Farrell applied to the Information Commissioner for review of the information exempted by the Department under s 47E.

The Privacy Commissioner ruled on November 21, 2013 that the Department’s decision should be set aside and the exempted information should be released to Mr Farrell. The exemption under Section 47E(d) provides: ‘[a] document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to…(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency’.

The Department had argued its operations would have been adversely affected if details had been released about an incident of self-harm while an individual was about to be deported from Australia on a scheduled commercial flight. It argued the information might help others avoid deportation by adopting the same behaviours. The Privacy Commissioner ruled (at paras 12 and 13):

“Much of the information exempted by the Department in document 1 is already in the public domain in the form of media articles relating to similar instances where disruptive behaviour had led to individuals being unable to be deported on commercial flights and charter flights having to be subsequently arranged. I have examined an unedited copy of document 1. Given that information of this nature is already publicly available, I do not consider that its disclosure would, or could reasonably be expected to have, a substantial adverse effect on the proper and efficient conduct of the Department’s operations or would result in the Department being required to alter its processes for deporting individuals.”

Lessons for journalists

The case holds important lessons about the workings of FOI and the exemptions that are available.

On the one hand, Farrell and his colleagues were able to publish a substantial body of material on their detentionlogs.com.au site as a result of numerous FOI requests – information later published as stories, searchable databases and graphics on other news sites including The Guardian, The Global Mailand New Matilda.

However, the case also provides an insight into the bureaucratic, technical and time-consuming side of the FOI application process. A request had taken a full year to be filed, rejected and reviewed, and the Department still had 28 days to appeal to have the Privacy Commissioner’s decision reviewed by the Administrative Appeals Tribunal. That would then open the way to a series of court appeals over the decision if either party chose to pursue them.

Theoretically, it could take years before the release of the information which might then be only of historical value rather than of news value.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

The Australian journalism union has released its annual review of press freedom, with thoughtful perspectives from journalists and media lawyers on the state of free expression in 2011.

The Media Entertainment and Arts Alliance has been producing these reports for the past seven years, and the archive is available here.

Human rights advocate and barrister Julian Burnside breaks the Wikileaks saga down into its component parts to distinguish between the leaking of classified government material and the publishing of such leaked material.

Freedom of information guru, FoI editor for the Seven network Michael McKinnon, assesses reformed laws at Commonwealth and State level to determine whether they have improved transparency. He gives examples showing the lengths to which bureaucrats will go to resist release of public documents.

Veteran political correspondent Laurie Oakes analyses new federal shield laws and Queensland whistleblower protection laws but warns against complacency in the new regime.

Founder of Crikey.com Stephen Mayne demonstrates that concentration of media ownership is alive and well by mapping the ‘cosy club of associated billionaires’ running the show in Australia.

Canberra Times writer Markus Mannheim reviews the Rudd-Gillard governments’ attempts to improve transparency in the public service.

Sydney Morning Herald journalist and author David Marr revisits a bizarre decision by the broadcast regulator ACMA (Australian Communications and Media Authority) about a television expose of a politician’s sexual preference. He argues the Seven network’s story and the subsequent copout by the regulator add weight to the push for stronger privacy laws.

The MEAA has produced a useful annual resource for the media law researcher and press freedom advocate and it is heartening to see high calibre media and law commentators making such important contributions.